What Do We Gain From Transparency? Or Metrics for Open Government

The folks at CITP and many others are quite excited about open government. One specific project, RECAP, looks to open access to court cases. The briefs and opinions of federal courts would be available to the public. Although I tend to laud this effort, I have also started to press on exactly why such access is a good thing. The standard techno-libertarian more information is a good thing model is most unsatisfying and does not provide enough guidance for my taste. I tend to agree that increased access to knowledge can have beneficial effects and that openness is a solid guiding star in many areas of policy. Still, once one gets into a specific context, I fear that the general assertions fall short. The recent open government conference that CITP hosted at Princeton lead me to try and state why access to court documents is desired. Here are the three goals that I think capture the reasons to support the idea.

1. Insofar as ignorance of the law is no defense, one needs access to the the law as rules. Providing the public with free access to court documents, especially opinions, allows the public to have the potential to investigate, understand, use, and challenge the law as it may see fit.

2. Another area that I believe few, if any, have offered, is that in addition to knowing the law, one needs to know how to use it. In other words, one needs to know how the law works. As law students and young associates quickly discover, the format and style in which one presents a legal argument matters. Providing access to briefs fulfills an instructional role. Lawyers do not re-invent wheels. They borrow briefs and exemplars from colleagues and now can even get briefs for some cases off of Westlaw. As a general matter, improving writing entails reading good writing. In addition, pro se and really anyone appearing before a court, can benefit from seeing how others argued a point. In addition, details such as how to organize a brief, state jurisdiction, and matter. My guess is that the more a brief looks professional, the more credence it is given. Thus, a second reason to open access to court documents is to provide the public with the tools it needs understand how the courts work and to use the law.

3. Open access to court documents also permits the public to take on a watchdog function. When anyone uses the system, as they are allowed to do, to bring several suits (e.g., file sharing suits), or use the system to push around smaller competitors, or use the system to pester large corporations with frivolous or greenmail suits, or any other practice that may be suspect, open access to court documents would enable the public to police the system. More obviously, such access would reduce the potential for corruption in the courts as well.

There are, of course, potential downsides to opening access to court documents. Privacy problems loom large. The practical obscurity that perhaps balanced the watchdog aspect with privacy problems would diminish if not vanish. Thus, I offer the above metrics in part to argue that one might be able to achieve the goals without sacrificing privacy. In short, completely full access to court documents that starts to harm privacy does not seem necessary to achieve the goals set forth above. Yet, it seems that if we have a system that hampers the public’s ability to engage with the court system on these three levels, we seem to have an impoverished idea of what access to the court means and the power it could have.